Data retention: Journalists decry 'Stasi‐like surveillance state'

A group of 12 news organisations and the union representing journalists have expressed alarm at elements of the government's proposed mandatory data retention scheme, with the Media, Entertainment and Arts Alliance (MEAA) recommending that the bill be ditched altogether.

The journalists' union condemned the proposed data retention regime as a move to a "Stasi‐like surveillance state".

The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 "threatens to expose the identity of sources and journalists as well as the communications between them and information they exchange," argues the MEAA's submission (PDF) to an inquiry scrutinising the bill argues.

"The Bill will undoubtedly undermine the crucial ethical obligation of journalists to protect the identity and information of confidential sources.

"This erosion of journalist privilege that is the consequence of the Bill will have a chilling effect on whistleblowers seeking to expose illegality, corruption or wrongdoing."

The Journalist Code of Ethics developed by the MEAA, which all members of the union's journalist section are required to abide by, states that if a journalist agrees to protect the identity of a source then that agreement must be maintained in all circumstances.

"This key principle is a bedrock position for the craft of journalism in our society," the submission states.

There are so-called shield laws in the majority of states and in the federal Evidence Act (Journalist Privilege) 2011. The laws are designed to protect journalists from attempts to force them to reveal the identity of confidential sources.

The submission argues that the data retention is "totally at odds with this legal principle".

Data retained under the regime could be used to identify whistleblowers, the union argued.

"Once that is known, the other tranches of national security legislation, particularly National Security Legislation Amendment Bill (No 1) 2014 can be used to jail both the source and the journalist for up to 10 years plus the information can be used to ensure that the media organisation’s computer network is tampered with, not only threatening the news story from ever becoming public but also expose all the news stories by that media outlet, its journalists and their sources," the submission states.

National Security Legislation Amendment Bill (No 1) 2014 contained provisions that dramatically increased the powers of security agencies to hack into computers. It also created a category of 'Special Intelligence Operations'. Reporting on those operations could potentially lead to journalists being jailed for up to 10 years. The MEAA has argued that such laws could target reporting on Edward Snowden-style disclosures.

"The development of a Stasi‐like surveillance state that monitors every member of the population with a phone, a computer, an internet browser and an email account is an outrageous attack on personal privacy and freedom," the union argued in its submission on the data retention laws.

"The fact that the surveillance state can then utilise the data it has discovered to pursue and prosecute whistleblowers and the journalists who work with them is an outrageous assault on press freedom and freedom of expression."

The legislation should not proceed, the union said. If the government does forge ahead with implementing data retention, then the current bill and the government's two previous tranches of national security reform should be amended to include media exemptions in order to protect press freedom.

There should be checks and balances in any data retention regime to protect journalists, the MEAA argued, and the Interdependent National Security Legislation Monitor should conduct a review of the press freedom implications of Australia's national security regime.

In addition, national security and law enforcement organisations should undertake training on the role of press freedom.

A separate submission (PDF) on behalf of AAP, the ABC, APN News & Media, ASTRA, Bauer Media, Commercial Radio Australia, Fairfax Media, FreeTV, News Corp Australia, SBS, The Newspaper Works and The West Australian, as well as the MEAA, argued that the data retention bill "does not include sufficient checks and balances and as a consequence may erode freedom of communication and freedom of the press"

The proposed legislation "further increases the degree of difficulty that will be encountered by journalists going about their day-to-day jobs, to report in the public interest particularly as it relates to undermining the confidentiality of sources, and the willingness of sources to come forward and share information including non-classified material, which in turn also makes it more difficult to corroborate information and details, which means it takes longer to get the stories that matter".

As with the MEAA's individual submission, it also expressed alarm over interaction between the data retention bill and National Security Legislation Amendment Bill (No 1) 2014 and Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

"We are of the view that the Bill currently before the Committee exacerbates the detrimental impact those Bills will have on freedom of the media – the undermining of the confidentiality of sources, the lack of protection for whistleblowers, and the risk of journalists being criminalised – all of which, separately and in aggregate, makes it increasingly difficult for news gathering and reporting in the public interest," the submission states.

The news organisations criticised the ability for the attorney-general to increase the list of government agencies authorised to access the data retained under the scheme.

The government's bill will initially shrink the number of agencies receiving warrantless access to metadata to the state police forces, the Australian Federal Police, the Australian Crime Commission and a number of anti-corruption organisations such as the Independent Commission Against Corruption and the Police Integrity Commission.

However, the attorney-general of the day can authorise further agencies to access metadata, and a number of organisations have already indicated they intend to seek such access.

The submission argues that the bill and its explanatory memorandum should "be amended to stipulate that the Ministerial declaration scheme available to request access to telecommunications data be based on demonstrated investigative or operational need for law enforcement and national security purposes only."

It adds that in "the absence of a warrant-like approval process, a properly functioning reporting process to record access to telecommunications data should be established; and

"An annual report be submitted, including statistics regarding the number of times telecommunications data was accessed, by which agencies, etc. The report should also include the results of any inspections and investigations, including compliance data, and any ensuing recommendations for improvement, including for a well-functioning regime."

The Attorney-General's Department in its own submission (PDF) to the inquiry said that it "is not appropriate to afford a special status to particular types of communications as powers of this type should, by their nature, be applied generally."

The department's submission argued that the law won't apply to what it describes as "legitimate whistleblowers"

"[T]o the extent that concerns relate to the disclosure of the identity of legitimate whistle-blowers, it is important to note that such persons have specific protection under the Public Interest Disclosures Act 2013 (PID Act). The effect of those protections is that disclosures by Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 legitimate whistle-blowers are not criminal acts," the submission states.

"Accordingly, telecommunications data would not be available by reason of the disclosure."

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